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Thursday, November 17, 2011

Regulatory Changes, Part 1

It's interesting when everything you thought was settled in a field you teach is suddenly up for grabs. Administrative law professors have been thinking a lot about recent proposed changes to the administrative process, some of which unsettle forty year-old understandings, and others of which reach back and significantly amend the Administrative Procedure Act itself. I'll be blogging about some of these proposals over the next week or so. To my mind they merit the attention given the possibility that Republicans could take control over the White House and Senate next year, and thus possibly be in a position to force these changes through. (These changes are generally being pushed by Republicans, though some of them have Democratic sponsors as well.)

I'll start with one example. One of the primary reform bills under consideration, the Regulatory Flexibility Act (S. 1606/H.R. 3010), mandates a formal hearing concerning the agency's use of data supporting the proposed rule when a party makes out a prima facie case that the agency has misused that data or used bad data. It then seems to require a second formal hearing on the merits of the rule itself.

Even this one set of provisions is enough to make an administrative law professor gasp. Formal, trial-type, procedures in rulemaking have been strongly disfavored ever since the early 1970's, for the simple, but powerful, reasons that (1) such procedures simply don't match up to the process of promulgating a generally-applicable, technocratically-based, rule, and (2) they slow down the regulatory process considerably. Indeed, the charge has been leveled, quite plausibly, that much more modest judicial innovations to the APA's informal rulemaking process have greatly ossified that process. Nor is the argument against such proceduralization simply a plea for more regulation. Rather, there's a real argument that such procedural mandates will only lead agencies to hide any regulation they manage to accomplish behind a veil of case-by-case adjudications or ostensibly non-binding guidance documents and other administrative vehicles exempt from rulemaking requirements. (It should be noted, though, that these reform efforts aim at making it harder for agencies to issue guidance documents, too.)

Like I said, for an administrative law professor it's disorienting to hear proposals discussed that would revisit what were thought to be disputes that were resolved a long time ago. But beyond that point, they were resolved as they were for a good reason. To my knowledge there's no administrative law scholar who favors increased emphasis on formal rulemaking, at least not as a general matter. It will be interesting to see if, after all this time and all this consensus, this and other such changes get serious hearings, either before or after the election.